United States Court of Appeals
For the First Circuit
No. 01-1263
KATHLEEN HARDY,
Plaintiff, Appellant,
v.
LOON MOUNTAIN RECREATION CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Robert G. Eaton, with whom Michelle LaCount, Christopher E.
Ratte, and Kalil & LaCount, were on brief, for appellant.
Corey M. Belobrow, with whom Devine & Nyquist was on brief,
for appellee.
*Of the District of New Hampshire, sitting by designation.
January 8, 2002
COFFIN, Senior Circuit Judge. Appellant Kathleen Hardy fell
on a path at the top of Loon Mountain, breaking her leg. She
claims that appellee Loon Mountain Recreation Corporation ("Loon
Mountain" or "Loon") was responsible for her injury. The
district court concluded that a New Hampshire recreational use
statute immunized appellee from liability and thus granted
summary judgment for the company. We affirm.
I. Background
Loon Mountain operates a recreational area on United States
Forest Service land in Lincoln, New Hampshire, under a special
use permit that gives the company a nonexclusive right to offer
recreational programs at the site. Loon's mainstay during the
winter months is its operation of a ski area. In the summer,
its activities include a gondola ride to the top of the
mountain. The mountain peak houses sightseeing activities, a
snack bar, and hiking paths. Under the terms of the Forest
Service permit, visitors may hike and sightsee in the area
without paying a fee.
On August 2, 1998, appellant visited Loon Mountain with
several companions. After entering the gondola house at the
bottom of the mountain and reading information about the varied
activities at the top, each member of appellant's group paid
five dollars to ride Loon's gondola to the top of the mountain.
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Once they arrived at their destination, they saw a sign
directing visitors to various activities. Loon did not charge
admission fees for any of the activities offered at the
mountain's crest. Appellant visited the snack bar and the
glacial caves, and saw a live presentation by "the Mountain Man"
(who regaled the visitors with tales of "folklore, legend, and
local history"). Appellant accessed Loon's various activities
on paths, bridges and wooden stairways constructed and
maintained by Loon. Appellant fell and suffered her injuries on
the way back to the gondola.
Appellant brought this diversity tort claim, alleging that
appellee negligently designed, constructed and maintained the
path where she fell, failed to warn her of a hazardous
condition, and provided her inadequate emergency service after
her fall. The district court granted appellee's motion for
summary judgment, holding that a New Hampshire recreational use
statute rendered Loon immune from liability.
II. Standard of Review
We review a grant of summary judgment de novo, examining the
record in the light most favorable to the non-moving party. See
Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st
Cir. 1998). Summary judgment is appropriate if the record shows
that there is no genuine issue of material fact and the moving
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party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c). The facts here are largely undisputed, so we
focus mainly on the legal question of the applicability of New
Hampshire's recreational use statutes.
III. Discussion
New Hampshire, like most other states, has enacted statutes
granting immunity to landowners who allow the public to access
their land for recreational purposes. The statutes, however,
are not limitless: although their precise wording differs, there
is no immunity if the landowner charges the public for access to
the land. Both the statutes and their exceptions are logical
because they encourage free and open use of recreational space.
When landowners directly profit from such access, however, it is
only fair that they be subject to liability for their negligent
actions.
In response to appellant's negligence allegations, appellee
sought to invoke two of New Hampshire's recreational use
statutes, N.H. Rev. Stat. Ann. §§ 508:14 and 212:34, contending
they both were applicable because Loon did not charge for the
activities at the top of the mountain. The district court found
§ 508:14 dispositive, and thus did not address § 212:34. We
agree that § 508:14 confers immunity upon Loon, and we therefore
also do not consider the second provision.
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The statute pertinently provides that "[a]n owner, occupant,
or lessor of land . . . who without charge permits any person to
use land for recreational purposes . . . shall not be liable for
personal injury or property damage. . . ." N.H. Rev. Stat. Ann.
§ 508:14 (emphasis added). "Charge" is not defined. Appellant
argues that the word "charge" should be construed broadly to
include her five-dollar gondola fee. She also contends that
§ 508:14's legislative history is inconsistent with a finding of
immunity here, because the statute was intended to convey
immunity only for gratuitous temporary use of land (for events
such as horse shows) and for off-road vehicles.
The New Hampshire Supreme Court has not addressed the
contours of the term "charge" as used in § 508.14; we must
therefore divine its likely construction. See Stratford Sch.
Dist., S.A.U. #58 v. Employers Reinsurance Corp., 162 F.3d 718,
720 (1st Cir. 1998) (a federal court sitting in diversity must
predict how the state court would resolve a novel legal issue by
looking to analogous decisions in other jurisdictions). We
believe the district court correctly concluded that the New
Hampshire court likely would adopt the majority view that
"charge" means an actual admission fee paid for permission to
enter the land for recreational purposes. See Howard v. United
States, 181 F.3d 1064 (9th Cir. 1999) (payment of fee to private
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instructor for sailing lessons in restricted military harbor is
not a charge by the government); Wilson v. United States, 989
F.2d 953 (8th Cir. 1993) (fee for use of facilities in
campground not a charge to use the surrounding land); Flohr v.
Penn. Power & Light Co., 800 F. Supp. 1252 (E.D. Pa. 1992) (no
charge to access recreational activities where only fee paid was
to rent campsite); Livingston v. Penn. Power & Light Co., 609 F.
Supp. 643, 648 (E.D. Pa. 1985) (easement and license fees to
access a lake "cannot logically be considered . . . 'quid pro
quo[s]'" and thus are not charges); Majeske v. Jekyll Island
State Park Auth., 209 Ga. App. 118, 433 S.E.2d 304 (Ga. App.
1993) (parking fee does not constitute a charge where fee was
per car, not per occupant, and any other means of accessing the
park was free); City of Louisville v. Silcox, 977 S.W.2d 254
(Ky. Ct. App. 1998) (same).1
1
Appellant reasons that many of these cases are inapposite
because the statutes at issue defined "charge." The
definitions, however, are hardly novel, and are in line with the
everyday plain meaning of "charge." Compare, e.g., Pa. St. 68
P.S. § 477-2(4) ("[T]he admission price or fee asked in return
for invitation or permission to enter or go upon the land.")
with The Random House Dictionary of the English Language 347 (2d
ed. 1983) ("[T]o impose or ask a price or fee. . . .").
Furthermore, because the plain meaning of the term "charge"
leads to a sensible construction of the statute, we do not delve
into its legislative history. See In re 229 Main St. L.P., 262
F.3d 1, 10 (1st Cir. 2001) ("[R]ecourse to [legislative history]
is impermissible to vary the words of an unambiguous statute
where those words, straightforwardly applied, yield an entirely
plausible result."); New Hampshire v. Rothe, 142 N.H. 483, 485,
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Moreover, that construction is consistent with our holding
in Collins v. Martella, 17 F.3d 1 (1st Cir. 1994), our only
opinion considering the limits of New Hampshire's recreational
use statutes. In Collins, we held that there was no charge for
accessing a beach where residents paid dues to a beach
association. Id. at 5. Our opinion turned on the crucial fact
that the residents were permitted to use the beach regardless of
whether they paid dues. Therefore, dues payments by some were
inconsequential. Here, appellant concedes that she could have
hiked to the mountain's summit for free; instead, she opted to
pay five dollars to ride the gondola. Whatever mode of
transportation she used to arrive at the summit is immaterial:
the attractions there were free to all. The gondola fee,
therefore, was not a "charge" for appellant's use of the land on
which she was injured.
Appellant argues that the term "charge" should be broadly
construed because the exemption from liability provided by
§ 508:14 is in "derogation of common law," Collins, 17 F.3d at
4, and thus must be given limited application. As explained
supra, however, the critical flaw in appellant's argument is
that the gondola fee was in exchange for the gondola ride, not
for access to the attractions. Accepting appellant's argument
703 A.2d 884, 885 (1997) (same).
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and taking it to its logical conclusion would require that any
charge by Loon to facilitate access to its attractions would
constitute a charge (such as a fee for a bus ride from a hotel
to the base of the mountain). We think the New Hampshire
Supreme Court would find that such tangential exchanges of money
are not within the ambit of the term "charge," although the
statute as a whole is narrowly construed.
Our construction of the term "charge" promotes sound public
policy. If we were to construe the gondola fee as a charge, the
result would be inconsistent applications of § 508:14. Under
appellant's rationale, Loon would not be immune in her case, but
would be exempted from liability for the same accident if the
person had hiked up the mountain. Because the injury occurred
in the course of an activity for which there was no charge, §
508:14 is applicable and the district court properly granted
summary judgment for Loon Mountain.
Affirmed.
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